6.One may well say rare.It is a matter of fact about which there can be no dispute.The truth of it may be seen in the multitude of Expositors which the Jurisprudence of every nation furnished,ere it afforded a single Censor.When Beccaria came,he was received by the intelligent as an Angel from heaven would be by the faithful.He may be styled the father of Censorial Jurisprudence.Montesquieu's was a work of the mixed kind.Before Montesquieu all was unmixed barbarism.Grotius and Puffendorf were to Censorial Jurisprudence what the Schoolmen were to Natural Philosophy.
7.A French Jurist of the last age,whose works had like celebrity,and in many respects much the same sort of merits as our Author's.He was known to most advantage by a translation of Demosthenes.
He is now forgotten.
8.`Burglary',[Comm.Ch.XVI.p.226.]says our Author,`cannot be committed in a tent or a booth erected in a market fair;though the owner may lodge therein:for the Law regards thus highly nothing but permanent edifices;a house,or church;the wall,or gate of a town;and it is the folly of the owner to lodge in so fragile a tenement.'To save himself from this charge of folly,it is not altogether clear which of two things the trader ought to do:quit his business and not go to the fair at all:or leave his goods without any body to take care of them.
9.Speaking of an Act of Parliament,[I Comm.Ch.
II.p.178.]`There needs',he says,`no formal promulgation to give it the force of a Law,as was necessary by the Civil Law with regard to the Emperor's Edicts:because every man in England is,in judgment of Law,party to the making of an Act of Parliament,being present thereat by his representatives.'This,for aught I know,may be good judgment of Law;because any thing may be called judgment of Law,that comes from a Lawyer,who has got a name:it seems,however,not much like any thing that can be called judgment of common sense.This notable piece of astutia was originally,I believe,judgment of Lord Coke:it from thence became judgment of our Author:and may have been judgment of more Lawyers than I know of before and since.What grieves me is,to find many men of the best affections to a cause which needs no sophistry,bewildered and bewildering others with the like jargon.
10.His words are,[IV Comm.Ch.XVI.p.226.]`There must be an actual breaking,not a mere legal clausum fregit (by leaping over invisible ideal boundaries,which may constitute a civil trespass)but a substantial and forcible irruption.'In the next sentence but two he goes on,and says,`But to come down a chimney is held a burglarious entry;for that is as much closed as the nature of things will permit.
So also to knock at a door,and upon opening it to rush in with a felonious intent;or under pretence of taking lodgings,to fall upon the landlord and rob him;or to procure a constable to gain admittance,in order to search for traitors,and then to bind the constable and rob the house;all these entries have been adjudged burglarious,though there was no actual breaking:for the Law will not suffer itself to be trifled with by such evasions.'...Can it be more egregiously trifled with than by such reasons?
I must own I have been ready to grow out of conceit with these useful little particles,for,because,since,and others of that fraternity,from seeing the drudgery they are continually put to in these Commentaries.
The appearance of any of them is a sort of warning to me to prepare for some tautology,or some absurdity:for the same thing dished up over again in the shape of a reason for itself:or for a reason which,ifs distinct one,is of the same stamp as those we have just seen.Other instances of the like hard treatment given to these poor particles will come under observation in the body of this Essay.As to reasons of the first-mentioned class,of them one might pick out enough to fill a volume.
11.`In what I have now said',says he,[IV Comm.
Ch.IV.p.49.]`I would not be understood to derogate from the rights of the national Church,or to favour a loose latitude of propagating any crude undigested sentiments in religious matters.Of Propagating,I say;for the bare entertaining them,without an endeavour to diffuse them,seems hardly cognizable by any human authority.I only mean to illustrate the excellence of our present establishment,by looking back to former times.
Every thing is now as is should be:unless,perhaps,that heresy ought to be more strictly defined,and no prosecution permitted,even in the Ecclesiastical Courts,till the tenets in question are by proper authority previously declared to be heretical.Under these restrictions it seems necessary for the support of the national religion',(the national religion being such,we are to understand,as would not be able to support itself were any one at liberty to make objections to it)`that the officers of the Church should have power to censure heretics,hut not to exterminate or destroy them.'
Upon looking into a later edition (the fifth)I find this passage has undergone a modification.After `Every thing is now as it should be',is added,`with respect to the spiritual cognizance,and spiritual punishment of heresy.'After `the officers of the Church should have power to censure heretics,'is added,`but not to harass them with temporal penalties,much less to exterminate or destroy them.'
How far the mischievousness of the original text has been cured by this amendment,may be seen from Dr Furneaux,Lett.II.p.30,2nd edit.212.I Comm.140.I would not be altogether positive,how far it was he meant this persuasion should extend itself in point of time:whether to those institutions only that happened to be in force at the individual instant of his writing:or whether to such opposite institutions also as,within any given distance of time from that instant,either had been in force,or were about to be.
